MS. M. K. SAHA EXPORT LTD. vs KOLKATA-II
- Court
- Customs, Excise and Service Tax Appellate Tribunal
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH: KOLKATA
REGIONAL BENCH – COURT NO. 2
Customs Appeal No. 75275 of 2023
(Arising out of Order-in-Appeal No. Kol/Cus/CCP/WB/KS/84-85/2023 dated
rd
03.02.2023 passed by the Commissioner of Custom House, 3 Floor, Custom House,
15/1, Strand Road, Kolkata-700001)
M/s. M. K. Saha Export Ltd.
M. K. House, 2/2, Justice Dwarkanath Road,
Kolkata-700020
: Appellant
VERSUS
Commissioner of Customs(Prev.),
rd
3 Floor, Custom House,
15/1, Strand Road, Kolkata-700001
: Respondent
AND
Customs Appeal No. 75280 of 2023
(Arising out of Order-in-Appeal No. Kol/Cus/CCP/WB/KS/84-85/2023 dated
rd
03.02.2023 passed by the Commissioner of Custom House, 3 Floor, Custom House,
15/1, Strand Road, Kolkata-700001)
M/s. South Assam Roadways,
Om Towers, 32, Choweingee Road,
rd
Room NO. 304, 3 Floor, Kolkata-700071.
: Appellant
VERSUS
The Commissioner of Customs(Prev.),
rd
3 Floor, Custom House,
15/1, Strand Road, Kolkata-700001
: Respondent
APPEARANCE:
Ms. Atika S. Ahmed, Advocate for the Appellant
Shri R. Chakraborty, Authorized Representative for the Respondent
CORAM:
HON’BLE SHRI R. MURALIDHAR, MEMBER (JUDICIAL)
HON’BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)
FINAL ORDER NOs.76569-76570/ 2026
DATE OF HEARING: 16.09.2026
DATE OF PRONOUNCEMENT: 30.10.2026
ORDER: [PER SHRI R. MURALIDHAR]
2
The Appellant No. 1, M/s M.K. Saha
Exports Ltd., is engaged in the business of
manufacture and export of orthodox tea and
has tea estates in Assam. In the ordinary
course of its business, the Appellant had
arranged transportation of 660 packages of
black tea, comprising consignments
originating from its tea estates in Assam, for
transportation to Kolkata. They had
engaged Appellant No. 2, M/s South Assam
Roadways, as transporter in the ordinary
course of business. On or about 02.01.2019,
officers of DRI, Siliguri intercepted the
vehicle and recovered four pieces of
elephant tusks from the Driver’s cabin
weighing 16.962 kgs, stated to have been
valued at approximately Rs.1,69,62,000/- .
T he tea packages were located in the rear
carrier of the vehicle. The Appellant No. 1
immediately took steps for securing release of
its legitimate commercial consignment. A
representation was made for release of the
seized tea. The Department thereafter
permitted provisional release of the tea upon
execution of a bond for its full value and
furnishing of security/bank guarantee of
approximately Rs.7,31,997/- . Appellant No. 2
furnished the requisite Bank Guarantee and
indemnity documentation, following which
the 660 packages of black tea were
provisionally released.
2. A Show Cause Notice issued under
DRI F. No. 16/CL/EXP/DRI/SLG/2018-
19/647 dated 28.06.2019 alleging, inter
3
alia, that the tea had been used as
camouflage for transportation of the
elephant tusks and that both Appellants
were liable to penal action. The Adjudicating
authority vide Order-in-Original No.
1/ADC(P)/CUS/WB/20-21 dated
26.06.2020, ordered confiscation of the tea
under Section 119 of the Customs Act,
1962, while granting an option for
redemption on payment of redemption fine
of Rs. 6,10,000/- . Further, Penalty of Rs.
3,00,000/- each was also imposed upon
Appellant No. 1 and Appellant No. 2 under
Section 114 of the Customs Act. The
Redemption fine of Rs. 6,10,000/- stands
appropriated against the Bank Guarantee
No. 6947BGFD007219 dated 14.03.2019 of
value Rs. 7,31,997/-issued by ICICI Bank
Ltd, Chowringhee whereas the remaining
balance of Rs. 1,21,997/- has been
appropriated towards the penalty imposed
upon M/s South Assam Roadways (i.e.
Appellant No. 2). The appeals filed before
the Commissioner (Appeals) came to be
dismissed by him. Therefore, the appellants
are before the Tribunal.
3. The Ld. Counsel representing the
appellants makes the following submissions:
4. The record discloses that the tea
consisted of approximately 300 packages
from Koilamari Tea Estate and 360 packages
from Majulighur Tea Estate, which were
initially transported in two smaller vehicles
4
and thereafter consolidated/transhipped for
onward transportation to Kolkata. The
movement of the tea was supported by
commercial transportation documentation,
including the relevant E-way Bills and
consignment documentation. The E-way
Bills bore the particulars of the consignment
and transporter. The record further
discloses that the transporter made the
requisite vehicle/transhipment-related
changes in the E-way Bills after the goods
were consolidated into the larger vehicle.
The consignment was ultimately loaded into
TATA Truck bearing Registration No. WB-
23E-5533 for transportation towards
Kolkata.
5. The driver i.e Subodh Das was
proceeded against in relation to the
elephant tusks. The record indicates that the
driver allegedly possessed/carried the
elephant tusks and that a separate
consideration of Rs.15,000/- was allegedly
offered to him for its transportation at the
behest of one person namely Shamsul
Haque Talukder. Significantly, there is no
allegation that either of the Appellants
received any part of such consideration.
Also, no alleged statement present on record
implicates either of the appellant into the
present case with connection to the
possession/carriage and or involvement with
the subject elephant tusks.
6. The first and most fundamental fact
5
which deserves emphasis is that the tea is a
genuine commercial commodity belonging to
Appellant No. 1. The record identifies the
nature, quantity, value and origin of the tea.
The 660 packages were not subsequently
introduced into the vehicle for the purpose
of concealing the elephant tusks. The
packages originated from identified tea
estates and were entrusted to the
transporter for transportation to Kolkata. The
Appellant No. 1 had a legitimate commercial
purpose in transporting the tea. The goods
were intended for delivery to its nominated
warehouse(s) in Kolkata, including Dutta Tea
Blenders.
7. The documents relied upon by the
Department itself demonstrate the existence
of a pre-existing commercial transportation
arrangement. The Appellant No. 1 had
generated E-way Bills dated 28.12.2018. The
consignment notes were also generated in
connection with the movement of the tea. The
record further shows that two smaller vehicles
initially carried the consignments from the
respective tea estates and that the
consignments were subsequently consolidated
into the larger vehicle at Guwahati.
8. The Appellant No. 1 had specifically
stated that the choice of vehicle and the
mode of transportation—whether by direct
vehicle or transshipment—was within the
operational domain of the transporter. This
distinction is crucial. The Appellant No. 1
6
entrusted a legitimate consignment to a
professional transporter. Once the goods were
handed over for carriage, the subsequent
operational selection of the vehicle through
Assam Bengal Parivahan did not, by itself,
establish that the consignor had knowledge of
every act independently undertaken by the
driver. Moreover, The Department has not
brought on record any communication from
the Appellant No. 1 instructing the driver to
carry elephant tusks.
9. The Hon’ble Bench may kindly consider
the fact that there is no evidence of any
financial transaction between the Appellant
No. 1 and the driver concerning the elephant
tusks. No part of the alleged consideration of
Rs.15,000/- stated to have been received for
transportation of the tusks by the driver
(booked through Parivahan) has been
attributed to either Appellant.
10. The absence of such evidence assumes
significance because the Department seeks to
transform an otherwise legitimate commercial
transportation transaction into a deliberate
smuggling arrangement. A finding of
deliberate camouflage must rest on positive
evidence of deliberate conduct. It cannot be
founded merely upon the circumstance that
the legitimate goods and contraband
happened to be present in the same vehicle.
11. The allegation of the Department is that
the black tea was used as “camouflage” for
the elephant tusks. The allegation, however,
7
is contradicted by the physical circumstances
recorded at the time of seizure. The elephant
tusks were recovered from the driver's cabin.
The black tea was loaded in the rear
portion/carrier of the vehicle.
12. Thus, the contraband was not
concealed beneath the tea packages/within
the tea packages/behind the tea
packages/inside the tea packages/or
otherwise physically shielded by the tea.
There is no finding that any package of tea
was opened, manipulated, modified or used
as a container for the tusks. There is no
finding that the tea packages were arranged
in a manner intended to conceal the driver's
cabin.
13. On the contrary, the very place of
recovery demonstrates that the alleged
contraband was independently possessed by
the driver. The distinction is not merely
technical. It strikes at the essential factual
premise of the confiscation order. If the tea
did not conceal the tusks, the Department
must identify some other factual basis to
bring the tea within Section 119. No such
independent basis has been established.
The phrase “camouflage” cannot substitute
for evidence. That circumstance may justify
inquiry, but it does not, without more,
establish deliberate concealment. The
Department was required to establish the
nexus between the tea and the contraband.
That nexus is conspicuously absent.
Reliance is placed upon the case law of Kool
8
International v. Commissioner of
Customs, New Delhi, reported in 2025
SCC Online CESTAT 4361 wherein the
Tribunal held that where the goods belonging
to the appellant were separate and distinct
and were not actually used to conceal the
other goods, Section 119 could not be
invoked. Consequently, the confiscation and
penalties were set aside
14. The ratio of Kool International assumes
significance in the present case as Section
119 cannot be invoked merely because two
categories of goods travelled in the same
conveyance. The statutory requirement is
that the goods sought to be confiscated must
have been used for concealing the smuggled
goods. Where the goods are separate and
distinct and no factual nexus of concealment
is established, invocation of Section 119 is
unsustainable. Section 119 concerns goods
used for concealing goods liable to
confiscation. The statutory concept therefore
contains a specific relationship between the
goods sought to be confiscated and the goods
alleged to be concealed. The provision cannot
be interpreted to mean that every legitimate
article transported in a vehicle containing
contraband automatically becomes
confiscable. Such an interpretation would
enlarge the scope of Section 119 beyond its
statutory language and would effectively
create a form of automatic or vicarious
confiscation. The Department must
establish:
9
a) identification of the goods
liable to confiscation;
b) identification of the goods
alleged to have been
used for concealment;
c) a factual nexus between the
two;
d) actual or demonstrable use
of the latter goods for
concealment; and
e) circumstances justifying
confiscation under the
statutory provision.
15. In the present case, while the elephant
tusks have been identified, the necessary
nexus between the tusks and the tea has not
been established. The tusks were recovered
from the driver's cabin whereas the tea was
located in the rear carrier of the vehicle.
Further, no evidence establishes that the
arrangement of tea obstructed detection of
the tusks. The conclusion that the tea
constituted “camouflage” is therefore
unsupported by the physical evidence. The
mere use of a common vehicle cannot be
equated with statutory concealment. If such
an interpretation were accepted, a transporter
carrying several independent consignments
would become automatically liable to
confiscation of every innocent consignment
whenever a driver independently carries
10
prohibited goods. Such an approach would
impose liability based upon proximity rather
than statutory nexus.
16. The record itself refers to the
statement of driver Shri Subodh Das from
which it is apparent that the tea was loaded
at a different point and at an earlier stage,
whereas the elephant tusks were allegedly
placed in the vehicle subsequently upon the
instruction of one Mr. Samsul Haque
Talukder @ Pakhi Mia (he has been traced
down by the department an later made a
party to the SCN). The significance of this
chronology cannot be understated. The tea
had already entered the transportation chain
as a legitimate commercial consignment. The
elephant tusks were subsequently introduced
into the driver's cabin. The distinction
demonstrates that the two transactions were
temporally and functionally separate.
17. A substantial part of the reasoning
against Appellant No. 1 proceeds from the
fact that the E-way Bills contained
modifications made by Appellant No. 2. The
Commissioner (Appeals) has treated such
modification as proof that Appellant No. 1
must necessarily have authorised or
participated in the illicit transportation. The
inference is unsustainable. The record itself
explains that the original tea consignments
were transported in two smaller vehicles
and were thereafter
consolidated/transhipped into vehicle No.
11
WB-23E-5533. A change in vehicle
particulars following transhipment is
inherently capable of being explained by the
transportation transaction itself.
18. The Appellant No. 1's reply records that
the transporter, being GST registered, made
the necessary changes in the E-way Bill
particulars relating to vehicle number, point of
loading and consignment details following
transshipment. Neither the Department has
established that the modifications were false
nor has the Department established that the
modifications were made for the purpose of
facilitating transportation of elephant tusks.
19. The authorities below have also relied
upon an alleged discrepancy concerning the
destination of the tea. The record shows
that the Appellant No. 1 explained that one
E-way Bill contained the registered office
address instead of the address of the
nominated warehouse and that the error
was clerical and unintentional. More
importantly, the Department has not
established that such clerical discrepancy
had any relationship with the elephant
tusks. The allegation concerning the
destination of the tea is therefore collateral
to the actual issue.
Even if a procedural
discrepancy in an E-way Bill were assumed,
such discrepancy cannot, without additional
evidence, establish participation in an
entirely separate illicit transaction involving
elephant tusks. The legal enquiry must
12
remain focused upon whether the Appellants
consciously facilitated the prohibited
activity. A discrepancy in commercial
documentation cannot automatically supply
the missing element of knowledge or intent.
The conduct of Appellant No. 1 immediately
after learning of the seizure is wholly
consistent with the conduct of an owner
whose legitimate commercial goods have
been wrongfully detained. Upon learning that
its tea consignment had been seized, the
Appellant contacted the transporter and
sought release of the tea. A representation
was made before the Customs authorities. The
Appellant sought provisional release because
the tea was a perishable commercial
commodity and was intended either for export
to China or for auction within the territory of
India as would have been determined post
arrival of the consignment at its designated
place. Such conduct is inconsistent with the
theory that the Appellant had deliberately
arranged for the tea to act as camouflage for
smuggled elephant tusks. Had the tea been
intentionally deployed as part of an illicit
scheme, the Appellant's conduct immediately
upon seizure would require some explanation.
Instead, the record demonstrates an attempt
to secure release of the Appellant's own
legitimate goods. The Department has not
identified any conduct of the Appellant after
seizure that indicates consciousness of guilt.
The case against Appellant No. 2 requires
separate consideration. Appellant No. 2 is a
transporter engaged in the business of
13
transportation and logistics. It was
engaged to transport the tea
consignment. The record shows that
Appellant No. 2 approached Assam Bengal
Parivahan for supply of a vehicle for the
transportation of the tea and consequently
vehicle No. WB-23E-5533 was supplied
through the said intermediary. The
transporter has specifically stated that it had
no previous knowledge of the driver or owner
of the vehicle. This fact assumes significance
because the alleged elephant tusks were
recovered from the driver's cabin. The
Department has not demonstrated that
Appellant No. 2 had any prior relationship
with the driver concerning the tusks. Neither
has it demonstrated that Appellant No. 2
instructed the driver to carry the tusks nor
has it demonstrated any payment from
Appellant No. 2 to the driver for
transportation of the tusks. The fact that
Appellant No. 2 arranged the vehicle for
carriage of tea does not establish that it
authorised every item subsequently placed in
the driver's cabin. A transporter cannot be
treated as an insurer against every
unauthorised act of an independent vehicle
owner or driver unless the statutory
ingredients of penal liability are established.
Reiance is placed upon the case law of
Harbans Singh Narula- Versus- Commissioner
of Customs (P), Mumbai reported in 1996
SCC OnLine CEGAT 417 : (1998) 100 ELT
wherein the Hon’ble CEGAT, Mumbai
282
was pleased enough to set aside the
penalties imposed upon the transporter based
14
on the following observation-:
“These are that as persons concerned
with running a transport company they
could not be expected to know, or be
aware of, the contents of each of the
hundreds of packages which must have
passed through their office; that there is
no specific evidence to show that the
appellants knew or had reason to
believe that the packages in question
contained contraband; there is no legal
requirement for names and addresses of
consignees and consignors to be
mentioned, and insistence of this
requirement, in practice would mean
refusing to accept large number of
packages for carriage.”
20. The Hon’ble Tribunal may kindly
appreciate that Section 114 concerns penalty
in relation to goods liable to confiscation
under Section 113. The penalty provision
cannot be applied merely because the
person happens to own goods transported in
a vehicle where another prohibited article is
discovered. The Department must establish
the particular act or omission attributable to
the person which attracts the provision. In
the present case, no act of Appellant No. 1
has been identified whereby it knowingly
attempted to export, assist in export, or
otherwise facilitate the elephant tusks. The
tea was not shown to be part of an export
declaration concerning elephant tusks.
Neither the elephant tusks were goods
belonging to Appellant No. 1. Nor there is
any evidence of financial benefit received by
15
Appellant No. 1 from the tusks. Also, there
is no evidence of communication with the
driver or instruction to the transporter
regarding the carriage of tusks. In these
circumstances, the penalty under Section
114 lacks the necessary factual foundation.
The ratio led down in the case law of
Concord Maritime and Logistics Pvt. Ltd.-
vs- Commissioner of Customs reported in
2024 SCC Online CESTAT 143
is very much
applicable in this case wherein the Hon’ble
Tribunal has held the following-:
“A bare perusal of the section show
that penalty can be imposed only on
the person who in relation to the
export goods which were rendered
liable to confiscation under section
113, does or omits or abets the doing
or omission of an act, shall be liable
for penalty. In this case the facts has
narrated in the show cause notice
itself shows that the appellant neither
filed the shipping bill nor committed
any act or abetted the commission or
omission of any act which rendered
the goods liable for confiscation under
section 113. In view of above, no
penalty whatsoever is imposable
under section 114 on the appellant.”
21. The case against Appellant No. 2 is
similarly deficient. The Appellant's
established role was that of transporter of
the tea, as for which the vehicle was
procured through Assam Bengal Parivahan.
The Appellant did not own the vehicle. Also,
16
the driver was not shown to be an employee
of Appellant No. 2. The Department has not
produced evidence that Appellant No. 2 was
aware of the tusks before seizure. Nor is
there evidence that Appellant No. 2 had any
financial interest in the alleged illicit
transportation.
22. The Department relies substantially upon
the fact that Appellant No. 2 had engaged the
vehicle. That circumstance alone is insufficient
to establish the statutory ingredients of penalty.
Otherwise, every transporter would become
automatically liable for every unauthorised
article independently carried by a driver. Such a
principle would amount to strict or vicarious
penal liability without statutory foundation. The
Customs Act requires the Department to
establish the relevant conduct of the person
sought to be penalized. That burden has not
been discharged.
23. In view of the above submissions, the Ld.
Counsel prays that the impugned order in respect of
the above appellants may be set aside the their
appeals may be allowed.
24. The Ld. AR appearing for the Revenue submits
that that Elephant Tusk was found in the truck which
was carrying the tea dispatched by the appellant.
This is operation to remove the contraband Elephant
tusk in a camouflaged way so that the truck can be
cleared as a normal truck carrying tea bags. He
relies on the detailed findings of the lower authorities
and prays that the present appeals may be
17
dismissed.
25. Heard both the sides. Perused the appeal
papers and further documents placed before us.
26. We first take up the Panchanama for the
seizure effected, the relevant portion of which is
reproduced below:
18
19
20
21
27. From the above extracts, we observe that the
Driver Subodh Das had told that he was carrying the
contraband Elephant Tusk secreted in an old and used
black back bag found in the Driver’s cabin.
22
28. After this, Subodh Das’s Statement was recorded
on 02.01.2019, i.e on the same day of the Panchanama.
The relevant details of his Statement as given in the OIO
is reproduced below:
“From the above statement, it is seen that he has
neither implicated the Appellant No.1 [M K Saha
Exports Pvt Ltd.] or the appellant No.2 South
Assam Roadways. He has stated that he has been
engaged by Samsul Haq Talukdar @ Pakhi Mia for
delivering the elephant tusk at Kolkata to
Md.Habibullah@ Babu Bhai. For this he was to be
paid Rs.15000. He has given the details of his
th
earlier attempt to carry out this activity on 17
December 2018 failing and subsequently, he
informed Pakhi Mia about his upcoming trip on
31.12.2018 and was asked to deliver the elephant
tusk on 1.1.2019. In this statement he has given
the details of Paki Mia as well as that of Babu Bhai
along with the mobile numbers used. We note that
in the entire statement, not a word has been
spoken against the role either M K Saha Exports,
whose Tea Bags or South Assam Roadways in this
transaction pertaining the Elephant Tusks. It is
seen that subsequently, the Revenue has made all
the efforts and located these persons and they
have been made a party to the present
proceedings. Here the factual details emerging is to
the effect is that Paki Mia is the sender of the
elephant tusks, Subodh Das is the driver cum
handler and the ultimate targeted recipient is the
Babu Bhai. The Revenue has not come out with any
evidence linking the present two appellant with any
of these three persons in this movement of
elephant tusks. The only reference and link that
can be considered would be the driver Subodh Das.
But has been engaged by the owner of the Vehicle
and not by the Appellant No.2. Hence, even with
Subodh Das no link has been established by the
23
Revenue between Appellant 1 and 2 with the
Driver, who was the handler.”
29. We have also gone through Statements recorded
by the officials of the M K Saha Exports and South Assam
Roadways. The relevant portion of their recorded
Statements reproduced in the OIO is extracted below:
In this Statement dated 11.02.2019, Shri Arun
Agarwal inter-alia stated that:
ii) M K Shah Exports Ltd had 13 Tea gardens in
Assam and produces tea in those gardens. M. K.
Shah Exports Ltd also had a nominated warehouse
at Kolkata namely Dutta Tea Blenders, BBT Road
Gobindapur Maheshtala, Kolkata-700141. Tea
produced in tea gardens of Assam are being
regularly transferred to warehouse of Dutta Tea
Blenders for selling the same to Kolkata and also
for exporting the same. For transportation of tea
three transporters are engaged by M. K. Shah
Exports Ltd, one of which is M/s South Assam
Roadways Ltd.
iii) After being acknowledging that their 660
packages of black tea weighing 14,740 Kgs were
seized by DRI, Siliguri on 02.01.2019 while being
transported in the truck bearing registration
number WB-23E-5533, he stated that on
04.01.2019 they received one phone call from DRI,
Siliguri Regional Unit regarding seizure of the
above consignment, they then contacted their
transporter M/s South Assam Roadways and
subsequently submitted one letter to the
Commissioner of Customs (Preventive), Kolkata on
07.01.2019 for releasing the black tea as the same
were meant for export.
iv) They regularly transport tea from their tea
gardens of Assam to Kolkata through transporters.
The driver of the truck bearing registration number
24
WB-23E-5533, on his own volition was carrying
subject elephant tusks in the driver's cabin of the
said truck. They were no way involved in this illicit
act. The truck was arranged by the transporter.
They were fully unaware of which truck or which
driver would be engaged by the transporter to
carry the consignment of tea.
v) On being asked by the DRI officers he further
stated that he did not know the driver of the carrier
truck Shri Subodh Das, S/o- Late Sashimohan Das
a resident of Nischinda, Ghoshpara, Howrah. He
was not even aware that which truck which would
be deployed by the transporter.
vi) Duta Tea Blenders is the nominated warehouse
of M. K. Shah Exports Ltd. Tea sent by M. K. Shah
Exports Ltd are being stored in the warehouse.
They were neither aware of the transporter nor the
truck or the driver associated with such
transportation.
vii) He reiterated that they were no way involved in
this illicit act of carrying the subject elephant tusks,
He thought that the driver was carrying the said
elephant tusks on his own volition to earn easy
money. He prayed for releasing the consignment of
tea at the earliest.
In his Statement dated 11.02.2019, Shri
Nemai Nag inter-alia stated that:
i) M/s South Assam Roadways Ltd. provides
logistics services throughout India.
ii) They got the order for transporting 660 pkgs
Black Tea from the office of M/s M. K.Shah Exports
Ltd. 212 Justice Dwarkanath Road, Kolkata-700020
over phone from Guwahati Kolkata and the said tea
was supposed to be delivered at the office of Dutta
Tea Blenders, Budge Budge Trunk Road, P.O.
Gobindapur, P.S. Maheshtala, Kolkata-700141.
25
iii) After being acknowledged that 660 packages of
black tea weighing 14,740 Kgs were seized by DRI,
Siliguri on 02.01.2019 while being transported in
the truck bearing registration number WB-23E-
5533, he stated that on 02.01.2019 they received
phone call at their Siliguri office from DRI, Siliguri
Unit regarding seizure of the above consignment. It
was also informed that elephant tusks were
recovered from the driver's cabin of the said truck
and the driver was arrested. They were also
advised to contact the owner of the tea for release
of the same, they then contacted M/s M. K. Shah
Exports Ltd and subsequently submitted a letter to
the Commissioner of Customs (Preventive), Kolkata
on 07.01.2019 for releasing the black tea as the
same were meant for export.
iv) They engage vehicles through authorized
vehicle broker for security of the goods and in this
instance the said truck bearing registration number
WB-23E-5533 was booked by their Guwahati office
through Assam Bengal Parivahan, Guwahati. As per
the data provided by Assam Bengal Parivahan, one
Shri Subodh Das was the driver of the said truck.
However, he did not know the said Subodh Das in
person.
v) On being asked to offer his comments on the
fact that elephant tusks were being transported in
the driver's cabin of the truck bearing registration
number WB-23E-5533 in which tea of M/s M K
Shah Exports Ltd. was being transported, he stated
that the truck was booked through authorized
vehicle broker Assam Bengal Parivahan, Guwahati
and the driver was engaged by them. They do not
have any hand in such engagement. The driver
might carrying the said elephant tusks on his own
volition to earn easy money.
26
vi) He reiterated that they were no way involved in
this illicit act of carrying the subject elephant tusks.
He prayed for releasing the consignment of tea at
the earliest
30. We find that in these statements, they have
told that they were not aware of any activity
independently taken by the driver on his own
volition. They have denied that they had anything to
do with the seized Elephant tusks. When all the
above three statements are viewed together, it is
clear that nowhere any link is established between
the present Appellant No.1, 2 with the contraband
goods.
31. Another point noted by us is that the
statement of the Driver Subodh has been taken
immediately after the Panchanama was drawn. On
immediate questioning, he has given the details of
the despatcher of the goods and the likely receiver of
the goods, without once mentioning anything about
the appellant No.1 and 2. Since there is not time gap
between the seizure and recording of statement, it
cannot be the case, that he was instructed or
directed to give a statement implicating some other
persons. It is also on record that, the Revenue has
ultimately found the persons, who have been
implicated in this statement. Further there is no
evidence brought in to the effect that the appellant
No.1 and 2 were in touch with the Driver to give any
such instructions.
32. In view of our observation, it would be
important to go through the details of the call
records relied upon in the OIO. We are reproducing
the relevant portion.
27
28. The Call Details Record (CDR) of the mobile
phone number 9862799982 (used by the said Pakhi
Mia as disclosed by Shri Subodh Das & found
registered in the name of Mr. Kadisang) was
obtained from concerned service provider and on
scrutiny of the Call Details Record (CDR) of the
number 9862799982 from the period of
01.12.2018 to 05.01.2019 it reveals that there are
several calls exchanged with the mobile numbers
9748622110 (recovered and seized from the
possession of Shri Subodh Das on 02.01.2019).
The details of the calls exchanged between mobile
numbers 9862799982 and 9748622110 are shown
in Table-I below:
Table-1
Duration
Calling No.
Called No.
Date
Time
(in
seconds)
9862799982' '9748622110 10-DEC-18 10:28:34’ 56
9862799982' '9748622110 11-DEC-18 09:54:14’ 49
9862799982' '9748622110 19-DEC-18 09:45:45’ 31
'9748622110 9862799982' 30-DEC-18 10:23:09’ 0
'9748622110 9862799982' 30-DEC-18 14:50:55’ 13
'9748622110 9862799982' 30-DEC-18 14:51:49’ 25
9862799982' '9748622110 30-DEC-18 14:52:34 82
'9748622110 9862799982' 31-DEC-18 07:53:59’ 0
9748622110 9862799982 31-DEC-18 08:46:47’ 38
9862799982 9748622110 31-DEC-18 08:47:43’ 86
9748622110 9862799982 01-JAN-19 06:29:27’ 36
9748622110 9862799982 01-JAN-19 06:30:32’ 0
9748622110 9862799982 01-JAN-19 07:53:27’ 30
28
9748622110 9862799982 01-JAN-19 08:57:27’ 64
9748622110 9862799982 01-JAN-19 09:51:51 18
9862799982 9748622110 01-JAN-19 10:58;45’ 22
9748622110 9862799982 01-JAN-19 18:42:38 0
9748622110 9862799982 01-JAN-19 19:03:01 0
29. The Call Details Record (CDR) of the mobile
phone number 8420226252 (used by the said
Babubhai as disclosed by Nazrul Islam and Subodh
Das & found registered in the name of Umair
Jawaid) was also obtained from concerned service
provider and on scrutiny of the Call Details Record
(CDR) of the number 8420226252 from the period
of01.12.2018 to 05.01.2019 it reveals that there
are several calls exchanged with the mobile
numbers 9862799982 & 9077693226 (used by the
said Samsul Haque Talukdar @ Pakhi Mia as
disclosed by Shri Subodh Das & found registered in
the name of Mr. Kadisang and Mr. Abhilas
respectively).
A. On scrutiny of the Call Details Record (CDR) of
the number 8420226252 (used by the said
Babubhai as disclosed by Nazrul Islam and Subodh
Das & found registered in the name of Umair
Jawaid) from the period of 01.12.2018 to
05.01.2019 it reveals that there are three calls
exchanged with the mobile number 9862799982
(used by the said Pakhi Mia as disclosed by Shri
Subodh Das & found registered in the name of Mr.
Kadisang). The details of the calls exchanged
between mobile numbers 9862799982 and
8420226252 is shown in
29
Table-2 below:
Duration
Calling No.
Called No.
Date
Time
(in
seconds)
8420226252 '9862799982' 04-DEC-18 10:03:17’ 12
9862799982' 8420226252 11-DEC-18 11:16:03’ 65
9862799982' 8420226252 11-DEC-18 12:54:04 48
B. On scrutiny of the Call Details Record (CDR) of
the number 84202262S2 (used by the said
Babubhai as disclosed by Nazrul Islam and Subodh
Das & found registered in the name of Umair
Jawaid) from the period of 01.12.2018 to
05.01.2019 it reveals that there are eleven calls
exchanged with the mobile number 9077693226
(used by the said Pakhi Mia as disclosed by Shri
Subodh Das & found registered in the name of Mr.
Abhilas. The details of the calls exchanged between
mobile numbers 8420226252 and 9077693226 is
shown in Table-3 below:
Table-3
Time
Duration
Calling No Called No Date
On
seconds)
11:09:56 10
04-DEC-
9077693226 8420226252
18
20
11:10:31
9077693226 8420226252 04-DEC-
18
156
07:57:36
8420226252 9077693226 '06-DEC-
18'
30
86
18:24:39
8420226252 9077693226 '06-DEC-
18'
84
09:21:20
8420226252 9077693226 11-DEC-
18'
16:01:09 96
8420226252 9077693226 11-DEC-
18'
37
15:51:20
8420226252 9077693226 '13-DEC-
18'
13:57:01 254
2568420226252 9077693226 '14-DEC-
18
7
14:01:31
8420226252 9077693226 '14-DEC-
18
14:03:13 81
9077693226 8420226252 '14-DEC-
18
0
18:15;40
9077693226 8420226252 '14-DEC-
18
33. From the above records, what is being
revealed is the talk between the Paki Mia and Driver
Subodh Das or Driver’s talk with the likely recipient.
None of these call records show that the appellant
number 1 or number 2 were discussing anything
over mobile with the Driver.
34. We also observe that after coming to know
about the seizure of the vehicle, the appellant No.1
and No.2 immediately approached the authorities
and sought the provisional release of the seized tea
bags. Upon their furnishing the necessary BG the
goods were released. This act of the appellants
shows their bonafides. In case they were hand in
glove with the movement of contraband, they would
have been searching for method to avoid any
interaction with the Revenue officials.
31
35. We find that ultimately the Revenue officials
have linked the transactions to Paki Mia and Babu
Bhai and they along with the carrier / driver are the
main person in the entire proceedings.
36. This being so, when all these facts are viewed
together, we find that no case whatsoever has been
made out against the appellant number 1 and
number 2. First of all, the tea bags were in the rear
portion of the truck. The contraband was seized from
the driver’s cabin, who also owned the responsibility,
without ever implicating the present two appellants.
Secondly, once the alleged perpetrators are made
part of the proceedings, in order take any action
against the present two appellants, the Revenue has
to provide cogent evidence linking these alleged
perpetrators with them. Not only the Driver has not
implicated the present appellants, even the other
alleged perpetrators have not given any statement
implicating the present appellants.
37. Mere defects pointed on account of Way bills,
error in the receiver’s name address etc. on their
own do not form any cohesive evidence against the
appellants. As a matter of fact, they have made their
submissions in their defence even towards these
errors.
38. Therefore, after taking an overall view of the
entire proceedings, we have come to a conclusion
that the Revenue has not come out with an cogent
evidence linking the appellants with the already
identified perpetrators.
32
39. So far as the confiscation of the tea bag, with
an option being given to be redeemed on payment of
Redemption Fine, as discussed above, we find that
no case has been made out for allegation that the
tea bags were being dispatched as a guise for
movement of the contraband goods. Hence, we set
aside the confiscation and the Redemption Fine
imposed. The Redemption fine already recovered is
required to be refunded to the appellant/s along with
interest.
40. As discussed above, no case has been made
out against the appellants towards penalty to be
imposed under Section 114 of the Customs Act 1062.
Therefore, we set aside the penalties imposed on the
present appellants.
41. We set aside the impugned order in respect of
the present two appellants. The appellants would be
eligible for consequential relief, if any, as per law.
(Order Pronounced in Open court on 30.10.2026)
(R. MURALIDHAR)
MEMBER (JUDICIAL)
(K. ANPAZHAKAN)
MEMBER (TECHNICAL)
RKP